MANOJ MANU Vs UNION OF INDIA .
Bench: ANIL R. DAVE,A.K. SIKRI
Case number: C.A. No.-006707-006707 / 2013
Diary number: 26331 / 2011
Advocates: SATYA MITRA GARG Vs
LALITA KAUSHIK
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CA.No.6707/2013@SLP(C)No.26967/2011
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6707/2013 (Arising out of Special Leave Petition (Civil) No.26967/2011)
Manoj Manu & Anr. ….Appellants
Vs.
Union of India & Ors. ….Respondents
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. This appeal has been preferred by the present appellants
questioning the validity of the judgment and order dated May 16, 2011
passed by the High Court, in Writ Petition which was filed by the appellants
questioning the validity of the order dated 29th March 2011, of the Central
Administrative Tribunal (hereinafter referred to as the “Tribunal”), Principal
Bench, New Delhi. The Tribunal had dismissed the Original Application
preferred by the appellants herein under Section 19 of the Administrative
Tribunal Act against their non-appointment to the post of Section Officer’s
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Grade of the Central Secretariat Service. The said O.A. was dismissed by
the Tribunal vide order dated 29th March 2011 which has been upheld by the
High Court.
3. There is no dispute about the facts, which may be briefly recapitulated
to understand the controversy that has arisen in these proceedings. The
appellants were working as Assistants in the Central Secretariat Service
(CSS) and appeared in Limited Departmental Competitive Examination for
the next promotion to the post of Section Officer’s Grade in that service.
There are two channels of promotion: one by way of seniority and other fast
track in the form of Limited Departmental Competitive Examination
(LDCE). The appellants appeared in the said LDCE 2005, which was
conducted by the Union Public Service Commission (UPSC) on the
requisition sent to it for 184 general category posts by the Department of
Personnel and Training (DoP&T). After holding the examination the UPSC
had recommended 184 candidates in two lots. First lot of 141 candidates
who were found suitable candidates for the said post whereas in the second
lot 43 successful candidates were recommended for appointment. Out of
them 6 candidates did not join. The DoP&T thereafter vide its letter dated
20th November 2009 had requisitioned 6 general category vacancies.
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However, the UPSC recommended names of three candidates from out of
reserve list maintained by it. These two appellants who were next in the
merit list had secured 305 marks, same as secured by one Rajesh Kumar
Yadav who was recommended by the UPSC in the supplementary list
candidates.
4. The appellants felt aggrieved by their non-recommendation, thereby
denying them the appointment to the post of Section Officer’s Grade. Under
these circumstances, these appellants filed the O.A. before the Tribunal
alleging that the UPSC had acted in an arbitrary and discriminatory manner
in contravention of Article 14 and 16 of the Constitution of India denying
them the right to get the appointment to the post to which they were not only
selected but equally placed as another candidate who was given the
appointment.
5. The Tribunal dismissed the O.A. primarily on the ground that ACR’s
are also seen for determining merit position inter-se candidates who had
secured same marks in written test and it was because of this reason that
these two appellants were not placed before Shri Rajesh Kumar Yadav.
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6. Before the High Court, the appellants submitted that they were not
questioning the aforesaid reason given by the Tribunal determining inter-se
merit position of the candidates who qualified the written test. Instead their
argument was that the Tribunal lost sight of the actual plea taken viz. when
there were sufficient vacancies available and even as per the letter sent by
the DoP&T vide its letter dated 20th November 2009 names of 6 candidates
were requisitioned, there was no reason not to forward the names of the
appellants for the appointment. The appellants relied upon Clause 4(c) of
the Office Memorandum dated 14th July 1967 in support of their aforesaid
contention. This Clause is reproduced hereinbelow:
“4(c) Once the results are published, additional persons should not normally be taken till the next examination. Nor should vacancies reported before declaration of the results, be ordinarily withdrawn after declaration of the results. If, however, some of the candidates recommended/allotted for appointment against the specific number of vacancies reported in respect of a particular examination do not become available for one reason or another, the Commission may be approached, within a reasonable time, with request for replacements from reserved, if available. When replacements may not be available, the vacancies that may remain unfilled should be reported to the Commission for being filled through the next examination.”
(Emphasis supplied)
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7. The submission of the appellants before the High Court was that the
aforequoted Clause specifically provides that the vacancies which are
reported have not to be ordinarily withdrawn after the declaration of results.
Therefore, when there were vacancies, and the appellants who had passed
the LDCE were available, their names should have been recommended by
the UPSC for appointment to ensure that vacancies do not go unfilled. It
was also submitted that from the recommended/allotted candidates by the
UPSC in case some of them are not available for whatever reason; the
concerned department could approach the Commission, within a reasonable
time with request for placement from reserved, if available. It was, thus,
stressed that in the instant case when some of the persons did not join with
the result that some vacancies were still available out of the vacancies
reported and even requisition was made, the UPSC should have forwarded
the names of 6 persons thereby including the appellants.
8. The stand of the UPSC, on the other hand, was that whether or not
UPSC should accept the said requisition was not the subject matter of the
aforesaid Office Memorandum. The UPSC pleaded that it was the
convention, followed throughout as a policy decision, that supplementary
list is not to be issued except in two categories of cases, namely, “repeat” or
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“common” candidates. Repeat candidates are those candidates, who have
participated in the same category in two LDCE and are successful in the first
examination and results have not declared when the second Departmental
Competitive Examination was held. Common candidates are those
candidates, who get selected in more than one category in the LDCE.
9. The High Court accepted the aforesaid contention of the UPSC with
the observation that taking a different view would upset the policy or
convention followed by UPSC and will create ambiguity which may also
lead to confusion. The High Court observed that the examination in
question was held for 196 vacancies as intimated by DoP&T and UPSC had
nominated 184 candidates in two lots. 12 SC vacancies remained unfilled
for want of suitable candidates. A supplementary list of three persons was
also issued as three selected candidates were “common/repeat” candidates.
10. We are unable to agree with the approach of the High Court in the
facts of the present case. It will be useful to point out that reason for sending
the requisition by DoP&T for forwarding the names of persons in the reserve
list was that some of the candidates whose names had been forwarded by the
UPSC did not join the post for one or other reason. The DoP&T in its
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communication dated 20th November 2009 had itself stated so, giving the
following reasons:
S. Roll Name Category Reasons for the
No. No. (S/Shri) vacancies to arise
1. 001147 Sanjay Bora General Already appointed as PS vide OM No.5/2/ 2009-SC.II dt.16.3.09
2. 000713 Ms.Kitty General Already appointed as PS vide OM No.5/2/ 2009-CS.II dt.16.3.09
3. 001823 Devjyoti General Technically resigned
on 17th August 2007 i.e.prior to the declaration of the result.His lien is over on 17th August 2009.
4. 001604 Sanjeev Jain General He has opted for appointment against seniority quota, 2005 instead of LDCE 2005.
5. 001376 Vishwajit Kalynai General He has given his undertaking to remain as Personal Secretary.
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6. 001711 Jai Kishore SC Qualified in LDCE 2005 Exam.,however pursuant to a court direction, he has been adjusted against SL 2000 (LDCE)
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In respect of each of the aforesaid six candidates DoP&T had given the
reasons as to why those six persons opted not to join the post of Section
Officer’s grade.
11. It can be clearly inferred from the reading of the aforesaid that it is not
the case where any of these persons initially joined as Section Officer and
thereafter resigned/left/promoted etc. thereby creating the vacancies again.
Had that been the situation viz. after the vacancy had been filled up, and
caused again because of some subsequent event, position would have been
different. In that eventuality the UPSC would be right in not forwarding the
names from the list as there is culmination of the process with the
exhaustion of the notified vacancies and vacancies arising thereafter have to
be filled up by fresh examination. However, in the instant case, out of 184
persons recommended, six persons did not join at all. In these circumstances
when the candidates in reserved list on the basis of examination already
held, were available and DoP&T had approached UPSC “within a
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reasonable time” to send the names, we do not see any reason or justification
on the part of the UPSC not to send the names.
12. We are conscious of the legal position that merely because the name of
a candidate finds place in the select list, it would not give him/her
indefeasible right to get appointment as well. It is always open to the
Government not to fill up all vacancies. However, there has to be a valid
reason for adopting such a course of action. This legal position has been
narrated by this Court in Ms.Neelima Shangla vs. State of Haryana (1986) 3
SCR 785. In that case:
The appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test. Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Govt. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to
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the Govt., a complete list of qualified candidates arranged in order of merit. How should Govt., act is stated by the Supreme Court in the following words:
“Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks.”
(Emphasis supplied)
13. The Court after making reference to the decision of the Supreme Court
in the case of State of Haryana vs. Subhash Chander Marwah reported in
(1972) IILLJ266 SC further observed as under:
“However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Govt., and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless.”
(Emphasis supplied)
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14. It is, thus, manifest that though a person whose name is included in the
select list, does not acquire any right to be appointed. The Government may
decide not to fill up all the vacancies for valid reasons. Such a decision on
the part of the Government not to fill up the required/advertised vacancies
should not be arbitrary or unreasonable but must be based on sound, rational
and conscious application of mind. Once, it is found that the decision of the
Government is based on some valid reason, the Court would not issue any
Mandamus to Government to fill up the vacancies.
15. In the present case, however, we find that after the UPSC sent the list
of 184 persons/recommended by it, to the Government for appointment six
persons out of the said list did not join. It is not a case where the
Government decided not to fill up further vacancies. On the contrary
DoP&T sent requisition to the UPSC to send six names so that the remaining
vacancies are also filled up. This shows that in so far as Government is
concerned, it wanted to fill up all the notified vacancies. The requisition
dated 20th November 2009 in this behalf was in consonance with its Clause
4(c) of O.M. dated 14th July 1967. Even when the Government wanted to
fill up the post, the UPSC chose to forward names of three candidates.
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16. There is a sound logic, predicated on public interest, behind O.M.
dated 14th July 1967. The intention is not to hold further selection for the
post already advertised so as to save unnecessary public expenditure. At the
same time, this very O.M. also stipulates that the Government should not fill
up more vacancies than the vacancies which were advertised. The purpose
behind this provision is to give chance to those who would have become
eligible in the meantime. Thus, this OM dated 14th July 1967 strikes a
proper balance between the interests of two groups of persons. In the
present case since the requisition of the DoP&T contained in communication
dated 20th November 2009 was within the permissible notified vacancies, the
UPSC should have sent the names of six candidates instead of three.
17. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002) 10
SCC 549 commended that the vacancies available should be filled up unless
there is any statutory embargo for the same. In Virender S.Hooda & Ors.
Vs. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts for direct
recruitment were available when the advertisement for recruitment was
made which was held in the year 1991. Some of the selected candidates did
not join in this batch almost similar to the present case, the Court held that
the appellant’s case ought to have been considered when some of the
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candidates for reasons of the non-appointment of some of the candidates and
they ought to have been appointed if they come within the range of
selection.
18. It is not the case of the UPSC that under no circumstances the names
are sent by way of supplementary list, after sending the names of the
candidates equal to the vacancies. As per the UPSC itself, names of
“repeat/common” candidates are sent and in the present case itself, three
names belonging to such category were sent. However, exclusion of the
persons like the appellants has clearly resulted in discrimination as one of
those three candidates Rajesh Kumar Yadav had also secured 305 marks and
once he was appointed to the post in question, the appellants with same
marks have been left out even when the vacancies were available.
19. We are, therefore, of the opinion in the facts of the present case, the
decision of UPSC in forwarding three names against requisition of DoP&T
for six vacancies was inappropriate. We, accordingly, allow the present
appeal; set aside the order of the High Court as well as Tribunal and issue
Mandamus to the UPSC to forward the names of the next three candidates to
the DoP&T for appointment to the post of Section Officer’s Grade. They
shall get the seniority from the date when Rajesh Kumar Yadav was
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appointed to the said post. Their pay shall notionally be fixed, without any
arrears of the pay and other allowances.
20. No costs.
………………………………J. [Anil R. Dave]
………………………………J. [A.K.Sikri]
New Delhi,
August 12, 2013
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